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Part A: Describe the "trial within a trial" method of determining damages caused by a lawyer's malpractice. See Fishman v. Brooks at 487 N.2d 1377...

  • Part A: Describe the "trial within a trial" method of determining damages caused by a lawyer's malpractice. See Fishman v. Brooks at 487 N.E.2d 1377 (Mass. 1986) and at p. 460 of your textbook.

  • In this case, Brooks charged attorney Fishman with legal malpractice for urging that Brooks settle, when in fact the attorney was not prepared for trial, and for mistakenly representing that driver's insurance policy limits were $250,000. Fishman urged Brooks to settle for $160,000 when the policy limits were, in fact, $1,000,000.00.

  • Assuming the hypothetical facts that you knew that this single successful malpractice action had happened 20 years ago, while this attorney was going through a personal divorce, would you trust him to handle a traffic accident in which you were involved?
  • Part B: The court in Carbone v. Tierney at 864 A. 2d 308 (N.H. 2004) and at p. 464, discusses the requirements for a plaintiff to collect on a malpractice claim against an attorney.

  • That is, this court decided that to successfully prove that the lawyer's malfeasance was the proximate cause of plaintiff's loss, he would have to demonstrate two (2) things. First, that if the defendant would have performed adequately, and then the plaintiff would have succeeded on the merits in the underlying case. And second, that the plaintiff would have succeeded in collecting on the resultant judgment.

  • This means that if the attorney can prove that the judgment, if won, would not have been collectible, then this uncollectability is a complete defense to the malpractice action and the plaintiff receives nothing.

  • Give opinion on whether or not you believe collectability should be a complete defense to legal malpractice actions. Provide a rationale for your response.

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